After 13 years, a case that first came before the South African Human Rights Commission (SAHRC) and from there progressively worked its way through to the Constitutional Court, finally concluded last week with the handing down of a unanimous judgment in “the matter between the SAHRC on behalf of the SA Jewish Board of Deputies (applicant) and Bongani Masuku (First Respondent) and Congress of South African Trade Unions (Second Respondent)”.

In summary, the ConCourt found sufficient grounds to uphold the original SAHRC ruling finding Masuku, then international relations secretary of Cosatu, guilty of hate speech and directing him to apologise to the Jewish community. The following statement by Masuku was declared by the court to be “harmful, and to incite harm and propagate hatred; and amounts to hate speech as envisaged in Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000” (Pepuda):

“… as we struggle to liberate Palestine from the racists, fascists and Zionists who belong to the era of their Friend Hitler! We must not apologise, every Zionist must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine. We must target them, expose them and do all that is needed to subject them to perpetual suffering until they withdraw from the land of others and stop their savage attacks on human dignity…” 

In considering this statement, the ConCourt concurred with the Equality Court that a reasonable reader would have noted that a reference to Hitler to a group that was predominantly Jewish was used because of their “Jewishness” – namely, their Jewish ethnicity and identity. As the Equality Court had noted, Hitler’s antisemitic extermination campaign was not limited to people of the Jewish faith or ethnicity who identified as Zionists, and moreover, any mention of “Hitler” undeniably “evoked semantic associations with the entire global Jewish community, and not a specific faction thereof”.

This is indeed an important point. Given the enduring legacy of the Nazi horrors inflicted on European Jewry, it has become commonplace for antisemites of every stripe to level baseless, insulting and profoundly demeaning charges against Jews that they themselves have become like Nazis. In describing his mainly Jewish readership as being “friends of Hitler”, Masuku would have been quite aware of the hurt he would be causing. 

The saga dates back to the early months of 2009 when, in the aftermath of a bloody three-week conflict between Israel and Hamas in Gaza, Masuku made a series of inflammatory attacks, both verbal and written, against those who demonstrated support for the Israeli state.

The extraordinary virulence of Masuku’s rhetoric coupled with what at times clearly crossed the line between attacks on Israel as a sovereign state and the denigration of Jews in general, was viewed with much concern by the South African Jewish Board of Deputies (SAJBD), the Jewish community’s civil rights watchdog lobby.

It was further observed how Masuku’s rhetoric on a number of occasions went beyond mere anti-Israel invective to constitute outright incitement to cause harm, which is explicitly prohibited under the Bill of Rights. Indeed, on one occasion Masuku even pointedly alluded to that prohibition when he warned that anyone who did not support his organisation on the Israel question “must face the consequences even if it means that we will do something that may necessarily cause what is regarded as harm”.

Accordingly, after repeated approaches to Cosatu to discuss the issue had been ignored, the SAJBD lodged a complaint of hate speech against Masuku with the SAHRC in March 2009.  

In December that year, the SAHRC issued its ruling upholding the board’s complaint and directing Masuku to apologise. The ruling found Masuku’s comments and statements to be of “an extreme nature that advocate and imply that the Jewish and Israeli community are to be despised, scorned, ridiculed and thus subjecting them to ill-treatment on the basis of their religious affiliation. A prima facie case of hate speech is clearly established as the statements and comments by Mr Masuku are offensive and unpalatable to society.”

With the full backing of Cosatu, Masuku refused to comply with the ruling, resulting in successive hearings before the Equality Court, Supreme Court of Appeal (SCA) and finally the Constitutional Court. The matter was pursued not by the SAJBD but by the SAHRC, to ensure that its ruling was complied with.

In June 2017, the Johannesburg High Court, acting as an Equality Court, upheld the SAHRC ruling. Masuku persisted in his refusal to apologise, and appeared to have been vindicated when in December 2018 the SCA set aside the Equality Court’s judgment.

As it transpired, the SCA was found to have erred rather spectacularly in terms of its application of the law in this matter, namely (as the ConCourt judgment expressed it) in having “turned to the Constitution at the expense of legislation [namely, Pepuda] specifically enacted by Parliament to address the mischief in question”.

This made an approach to the ConCourt to finally resolve the question inevitable and the case was heard in August 2019. With the handing down of the ConCourt’s judgment last week, Masuku finally ran out of options and now has 30 days from the date of issue to comply with the order that he apologise.

For those who deny that there is any overlap between anti-Zionism and hatred against Jews in general, it is worth pointing out here that BDS South Africa gleefully celebrated the SCA finding by comparing the SAJBD to the “greedy and conscienceless Jewish moneylender Shylock, who insisted on slicing a pound of flesh from a debtor”, and lauding the SCA for having stopped the SAJBD “racists” from taking a pound of flesh from Bongani Masuku.

This showed yet again both the real nature of a body that never fails to position itself as a “human rights organisation”, and how easy it can be for something that purports to be mere “criticism” of the Israeli state to slip into classic antisemitism. 

For Cosatu, which backed Masuku to the hilt throughout, the outcome can only be regarded as a stinging defeat. After more than a decade of aggressively defending its employee (not to mention expending to that end what one can only imagine in terms of legal fees), it has now effectively been found by the country’s apex court to have endorsed anti-Jewish racism and must now, through Masuku, apologise after all to the Jewish community’s representative spokesbody, an organisation it has persistently mocked and maligned.

Cosatu’s freedom to adopt whatever position it chooses on the Israel-Palestine question is not in question. What one does have to ask is why this country’s premier trade union federation and tripartite alliance member should have fought so long to defend its international relations spokesperson for engaging in what the courts have confirmed as being hate speech against the Jewish community.

It is appropriate to close by quoting from the concluding paragraph of this important judgment, and endorse the fundamental message this country’s foremost judicial forum conveys in terms of how we, as equal citizens of a free society, need to engage with one another, even, and indeed especially, when we disagree:           

“In dealing with the delicate relationship between the fundamental rights at stake in a matter like this, the ends of our constitutional democracy are served by striking an elusive yet crucial balance between the imperative to regulate hate speech and the importance of fostering ‘an environment that allows a free and open exchange of ideas, free from censorship, no matter how offensive, shocking or disturbing these ideas may be’. This is unlikely to be a straightforward task and will involve careful consideration of the law and context. In the context of this matter, and in appreciating the power of words to inflict harm, it is fitting to close with a cautionary and apposite extract taken from the Torah: ‘Death and life are in the tongue’.” DM

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